Atomic Irrigation Services – Terms & Conditions of Trade
1.1. “Atomic” means Daniel Lucien Smith T/A Atomic Irrigation Services, its successors and assigns or any person acting on behalf of and with the authority of Daniel Lucien Smith T/A Atomic Irrigation Services.
1.2. “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3. “Goods” means all Goods or Services supplied by Atomic to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4. “Price” means the Price payable for the Goods as agreed between Atomic and the Client in accordance with clause 5 below.
2.1. The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2. These terms and conditions may only be amended with Atomic’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Atomic.
3. Electronic Transactions (Queensland) Act 2001
3.1. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. Change in Control
4.1. The Client shall give Atomic not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Atomic as a result of the Client’s failure to comply with this clause.
5. Price and Payment
5.1. At Atomic’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Atomic to the Client; or
(b)Atomic’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation orotherwise for a period of thirty (30) days.
5.2. Atomic reserves the right to change the Price:
(a) if a variation to the Goods which are to be supplied is requested; or
(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested;or
(c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, prerequisite work by any third party not being completed, obscured defects or hazards, change of design, hard rock barriers below the surface or iron reinforcing rods in concrete, hidden pipes and wiring in walls etc) which are only discovered on commencement of the Services; or
(d) in the event of increases to Atomic in the cost of labour or materials which are beyond Atomic’s control.
5.3. At Atomic’s sole discretion a deposit may be required.
5.4. Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/sdetermined by Atomic, which may be:
(a) on delivery of the Goods;
(b) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or addressfor notices;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to theClient by Atomic.
5.5. Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method asagreed to between the Client and Atomic.
5.6. Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Atomic anamount equal to any GST Atomic must pay for any supply by Atomic under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Delivery of Goods
6.1. Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods at Atomic’s address; or
(b) Atomic (or Atomic’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
6.2. At Atomic’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
6.3. The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Atomic shall be entitled to charge areasonable fee for redelivery and/or storage.
6.4. Atomic may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid inaccordance with the provisions in these terms and conditions.
6.5. Subject to clause 6.6 it is Atomic’s responsibility to ensure that the Services start as soon as it is reasonably possible.
6.6. The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Atomic claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Atomic’s control, including but not limited to any failure by the Client to: (a) make a selection; or
(b) have the site ready for the Services; or(c) notify Atomic that the site is ready.
6.7. Any time or date given by Atomic to the Client is an estimate only. The Client must still accept delivery of the Goods even if late and Atomic will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
7.1. Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
7.2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Atomic is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Atomic is sufficient evidence of Atomic’s rights to receive the insurance proceeds without the need for any person dealing with Atomic to make further enquiries.
7.3. The Client acknowledges that Goods (including but not limited to paint, timber, granite, tiles & concrete) supplied may
(a)exhibit variations in shade, colour, texture, surface, finish, markings and may contain natural fissures, occlusions, lines, indentations and may fade or change colour over time; and
(b)expand, contract or distort as a result of exposure to heat, cold, weather; and
(c)mark or stain if exposed to certain substances; and
(d)be damaged or disfigured by impact or scratching.
7.4. While every effort will be taken by Atomic to match colour or grain of product, Atomic will take no responsibility for any variation of grain of timber, granite and other natural products between sale samples and the final product.
7.5. Where Atomic is required to install the Goods the Client warrants that the structure of the premises or equipment in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and Atomic shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising in connection with the installation and work incidental thereto.
7.6. The Client acknowledges that Atomic is only responsible for parts that are replaced by Atomic and that in the event that other parts/Goods, subsequently fail, the Client agrees to indemnify Atomic against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising.
7.7. The Client accepts and acknowledges that shrubs, plants, natural turf and any other flora, foliage or vegetation supplied by Atomic are organic in nature and require care and maintenance. Atomic does not accept liability for any loss or damage to the plants where such plants may have become affected or died due to the Client’s failure to properly maintain the plants and/or to follow any instructions or guidelines provided by Atomic in regard to the proper care of the plants (including but not limited to, adequate watering of the plants).
7.8. The Client acknowledges that in the event asbestos or any other toxic substances are discovered at the worksite that it is their responsibility to ensure the safe removal of the same. The Client further agrees to indemnify Atomic against any costs incurred by Atomic as a consequence of such discovery. Under no circumstances will Atomic handle removal of asbestos product.
7.9. Any advice, recommendation, information, assistance or service provided by Atomic in relation to Goods or Services supplied is given in good faith, is based on Atomic’s own knowledge and experience and shall be accepted without liability on the part of Atomic and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Goods or Services.
8. Accuracy of Client’s Plans and Measurements
8.1. Atomic shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, Atomic accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
8.2. In the event the Client gives information relating to measurements and quantities of the Goods required to complete the Services, it is the Client’s responsibility to verify the accuracy of the measurements and quantities, before the Client or Atomic places an order based on these measurements and quantities. Atomic accepts noresponsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause.
9.1. The Client shall ensure that Atomic has clear and free access to the work site at all times to enable them to undertake the Services. Atomic shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Atomic.
9.2. It is the responsibility of the Client to ensure that access is suitable to accept the weight of laden trucks, front end loaders or other earth moving equipment as may be deemed necessary by Atomic. The Client agrees to indemnify Atomic against all costs incurred by Atomic in recovering such vehicles in the event they become bogged or otherwise immovable.
10. Dial Before You Dig
10.1. Location of underground services by a licensed service locator is mandatory prior to commencement of any Services. “Dial Before You Dig” must be consulted and any potential underground services marked on site. Whilst Atomic will take all care to avoid damage to any underground services the Client agrees to indemnify Atomic in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified. If the Client requests Atomic to engage the service locator then this shall be in addition to the Price.
11. Compliance with Laws
11.1. The Client and Atomic shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
11.2. The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
11.3. The Client agrees that the site will comply with any work health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
12.1. Atomic and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Atomic all amounts owing to Atomic; and
(b) the Client has met all of its other obligations to Atomic.
12.2. Receipt by Atomic of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
12.3. It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 12.1 that the Client is only a baileeof the Goods and must return the Goods to Atomic on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Atomic and must pay to Atomic the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Atomic and must pay or deliver the proceeds toAtomic on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does sothen the Client holds the resulting product on trust for the benefit of Atomic and must sell, dispose of or returnthe resulting product to Atomic as it so directs.
(e) the Client irrevocably authorises Atomic to enter any premises where Atomic believes the Goods are kept and recover possession of the Goods.
(f) Atomic may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away anyinterest in the Goods while they remain the property of Atomic.
(h) Atomic may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership ofthe Goods has not passed to the Client.
13. Personal Property Securities Act 2009 (“PPSA”)
13.1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
13.2. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Client to Atomic for Services – that have previously been supplied and that will be supplied in the future by Atomic to the Client.
13.3. The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete,accurate and up-to-date in all respects) which Atomic may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the PersonalProperty Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii)correct a defect in a statement referred to in clause 13.3(a)(i) or 13.3(a)(ii);
(b) indemnify, and upon demand reimburse, Atomic for all expenses incurred in registering a financing statement orfinancing change statement on the Personal Property Securities Register established by the PPSA or releasingany Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent ofAtomic;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to theGoods and/or collateral (account) in favour of a third party without the prior written consent of Atomic;
(e) immediately advise Atomic of any material change in its business practices of selling the Goods which wouldresult in a change in the nature of proceeds derived from such sales.
13.4. Atomic and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreementcreated by these terms and conditions.
13.5. The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of thePPSA.
13.6. The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
13.7. Unless otherwise agreed to in writing by Atomic, the Client waives their right to receive a verification statement inaccordance with section 157 of the PPSA.
13.8. TheClient must unconditionally ratify any actions taken by Atomic under clauses 13.3 to 13.5.
13.9. Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have theeffect of contracting out of any of the provisions of the PPSA.
14. Security and Charge
14.1. In consideration of Atomic agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
14.2. The Client indemnifies Atomic from and against all Atomic’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Atomic’s rights under this clause.
14.3. The Client irrevocably appoints Atomic and each director of Atomic as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Client’s behalf.
15. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
15.1. The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify Atomic in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Atomic to inspect the Goods.
15.2. Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
15.3. Atomic acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
15.4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Atomic makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Atomic’s liability in respect of these warranties is limited to the fullest extent permitted by law.
15.5. If the Client is a consumer within the meaning of the CCA, Atomic’s liability is limited to the extent permitted by section 64A of Schedule 2.
15.6. If Atomic is required to replace the Goods under this clause or the CCA, but is unable to do so, Atomic may refund any money the Client has paid for the Goods.
15.7. If the Client is not a consumer within the meaning of the CCA, Atomic’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by Atomic at Atomic’s sole discretion;
(b) limited to any warranty to which Atomic is entitled, if Atomic did not manufacture the Goods;
(c) otherwise negated absolutely.
15.8. Subject to this clause 15, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 15.1; and
(b) Atomic has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
15.9. Notwithstanding clauses 15.1 to 15.8 but subject to the CCA, Atomic shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparentto a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by Atomic;
(e) fair wear and tear, any accident, or act of God.
15.10.Notwithstanding anything contained in this clause if Atomic is required by a law to accept a return then Atomic will only accept a return on the conditions imposed by that law.
16. Default and Consequences of Default
16.1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Atomic’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2. If the Client owes Atomic any money the Client shall indemnify Atomic from and against all costs and disbursements incurred by Atomic in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Atomic’s contract default fee, and bank dishonour fees).
16.3. Further to any other rights or remedies Atomic may have under this contract, if a Client has made payment to Atomic by credit card, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Atomic under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
16.4. Without prejudice to any other remedies Atomic may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Atomic may suspend or terminate the supply of Goods to the Client. Atomic will not be liable to the Client for any loss or damage the Client suffers because Atomic has exercised its rights under this clause.
16.5. Without prejudice to Atomic’s other remedies at law Atomic shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Atomic shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Atomic becomes overdue, or in Atomic’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangementwith creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Clientor any asset of the Client.
17.1. Atomic may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Atomic shall repay to the Client any money paid by the Client for the Goods. Atomic shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.2. In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Atomic as a direct result of the cancellation (including, but not limited to, any loss of profits).
17.3. Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
18. Privacy Act 1988
18.1. The Client agrees for Atomic to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by Atomic.
18.2. The Client agrees that Atomic may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.
18.3. The Client consents to Atomic being given a consumer credit report to collect overdue payment on commercialcredit.
18.4. The Client agrees that personal credit information provided may be used and retained by Atomic for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b)analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision ofGoods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
18.5. Atomic may give information about the Client to a CRB for the following purposes:(a) to obtain a consumer credit report;(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
18.6. The information given to the CRB may include:
(a) personal information as outlined in 18.1 above;
(b) name of the credit provider and that Atomic is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e)details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and Atomic has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of Atomic, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars($150).
18.7. The Client shall have the right to request (by e-mail) from Atomic:
(a) a copy of the information about the Client retained by Atomic and the right to request that Atomic correct any incorrect information; and
(b) that Atomic does not disclose any personal information about the Client for the purpose of direct marketing.
18.8. Atomic will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored inaccordance with the law.
18.9. The Client can make a privacy complaint by contacting Atomic via e-mail. Atomic will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
19. Building and Construction Industry Payments Act 2004
19.1. At Atomic’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Payments Act 2004 may apply.
19.2. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004 of Queensland, except to the extent permitted by the Act where applicable.
20.1. The failure by Atomic to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Atomic’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2. These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the state in which Atomic has its principal place of business, and are subject to the jurisdiction of the Townsville courts in that state.
20.3. Subject to clause 15 Atomic shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Atomic of these terms and conditions (alternatively Atomic’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
20.4. The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Atomic nor to withhold payment of any invoice because part of that invoice is in dispute.
20.5. Atomic may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
20.6. The Client agrees that Atomic may amend these terms and conditions at any time. If Atomic makes a change to these terms and conditions, then that change will take effect from the date on which Atomic notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request forAtomic to provide Goods to the Client.
20.7. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,fire, flood, storm or other event beyond the reasonable control of either party.
20.8. The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
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